Plaintiffs appealed the decision of this court to the Court of Appeals for the District of Columbia Circuit. Navegar, Inc. v. United States, 322 U.S. App. D.C. 288, 103 F.3d 994 (D.C. Cir. 1997). The Court of Appeals first considered the justiciability of the plaintiffs' challenges to the sections of the Act specifically mentioning firearms produced by Intratec and Penn Arms by name. By its terms, the Act makes it unlawful for a person to "manufacture, transfer, or possess a semiautomatic assault weapon." 18 U.S.C. § 922(v)(1). "Semiautomatic assault weapons" are defined to include "any of the firearms, or copies or duplicates of the firearms in any caliber, known as . . . INTRATECTEC-9, TEC-DC9 and TEC-22, and . . . revolving cylinder shotguns, such as (or similar to) the Street Sweeper and Striker 12." 18 U.S.C. § 921(a)(30)(A). In effect, these portions of the Act make it unlawful to manufacture or transfer Intratec's "TEC-9," "TEC-DC9," and "TEC-22" models, and Penn Arms' "Striker 12" model. 18 U.S.C. § 922(v)(1) and §§ 921(a)(30)(a)(viii) and 921(a)(30)(A)(ix). Because of the weapon-specific nature of these sections, the Court of Appeals considered plaintiffs' challenges to these provisions separately from the challenges based on the generally-worded provisions of the Act.

The Court of Appeals reversed this court's conclusion dismissing plaintiffs' pre-enforcement challenge to these provisions of the Act for lack of a justiciable controversy. Navegar, 103 F.3d at 999-1001. The Court of Appeals noted that the Act effectively singles out both Intratec and Penn Arms as intended targets by prohibiting the production of weapons that only these companies manufacture. The Court of Appeals commented that "the applicability of the statute to appellants' business [is] indisputable: if these provisions of the statute are enforced at all, they will be enforced against these appellants for continuing to manufacture and sell the specified weapons." Id. at 1000. For this reason, the Court of Appeals determined that the imminent threat of prosecution could be deemed speculative only if it was likely that the government would simply decline to enforce these provisions of the Act--a conclusion that the Court of Appeals was unwilling to reach. As such, plaintiffs demonstrated an imminent threat of prosecution under this portion of the Act and the controversy was ripe for adjudication. Thus, the Court of Appeals was satisfied that the controversy was justiciable.

The Court of Appeals reached a contrary conclusion with respect to plaintiffs' pre-enforcement challenges to those portions of the Act identifying prohibited materials by general characteristics only. Plaintiffs sought to challenge the constitutionality of other portions of the Act referring to weapons and accessories sharing certain features, rather than to particular brands and models of weapons. Specifically, plaintiffs allege that the Act exceeds the powers of Congress enumerated in the Constitution and that the Act is too vague to comply with the Due Process Clause of the Fifth Amendment to the Constitution. The enumerated powers claim presented by plaintiffs challenges the portion of the Act outlawing "large capacity ammunition feeding devices," defined as ammunition magazines "that have a capacity of . . . more than 10 rounds of ammunition." 18 U.S.C. §§ 922(w)(1) and 921(a)(31). Plaintiffs' vagueness claims are centered on the portions of the Act that prohibit firearms "known as . . . revolving cylinder shotguns," 18 U.S.C. § 921(a)(30)(A)(ix), and semiautomatic pistols that have two out of five listed characteristics. 18 U.S.C. § 921(a)(30)(C).

The Court of Appeals agreed with this court's conclusion that plaintiffs were unable to show an imminent threat of prosecution under the portions of the Act describing the outlawed items in general categorical terms and thus, the challenges to these portions of the Act were determined to be non-justiciable at that time. Navegar, 103 F.3d at 1001-02.

Presently, plaintiffs seek leave to amend their complaint in an effort to demonstrate their challenges to the generic portions of the Act are justiciable in light of the Court of Appeals' prior decision in this case. For the reasons stated below, plaintiffs' motion to amend their complaint is denied.

II. Analysis

Rule 15(a) of the Federal Rules of Civil Procedure states in relevant part that "a party may amend the party's pleading only by leave of court or by written consent of the adverse party . . . and leave shall be freely given when justice so requires." Fed. R. Civ. P. 15(a). In Foman v. Davis, 371 U.S. 178, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962), the Supreme Court defined the term "when justice so requires" and explained that "in the absence of any apparent or declared reason--such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party . . . futility of amendment, etc.--the leave sought should, as the rules require, be 'freely given.'" Id. at 182 (emphasis added). Accordingly, "within these bounds, a district court has discretion to grant or deny leave to amend under Rule 15(a)." Atchinson v. District of Columbia, 315 U.S. App. D.C. 318, 73 F.3d 418, 426 (D.C. Cir. 1996). See also Foman, 371 U.S. at 182 ("The grant or denial of an opportunity to amend is within the discretion of the District Court, but outright refusal to grant the leave without any justifying reason . . . is not an exercise of discretion."); Firestone v. Firestone, 316 U.S. App. D.C. 152, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (indicating that the granting or denial of leave to amend is committed to the district court's discretion).

As the Supreme Court stated in Foman, a motion to amend a complaint should be denied when such an amendment would be futile. "It has been repeatedly held that an amended complaint is 'futile' if the complaint as amended would not survive a motion to dismiss." Monroe v. Williams, 705 F. Supp. 621, 623 (D.D.C. 1988) (citing Massarsky v. General Motors Corp., 706 F.2d 111, 125 (3d Cir. 1983)). See also Graves v. United States, 961 F. Supp. 314, 317 (D.D.C. 1997) ("A motion to amend the Complaint should be denied as 'futile' if the complaint as amended could not withstand a motion to dismiss.").

In the instant case, the government contends that plaintiffs' Motion for Leave to Amend Complaint should be denied as futile on the basis that "the proposed Second Amended Complaint would no more confer jurisdiction on this court to bring the disputed challenges than did the First Amended Complaint." Opp. to Mot. for Leave to Amend Compl. at 2. The government asserts that the new facts proffered by plaintiffs remain insufficient to satisfy the requirements for justiciability set forth by the Court of Appeals in its prior consideration of this issue in this case.

In its assessment of whether plaintiffs had standing to pursue a pre-enforcement challenge of the Act, the Court of Appeals differentiated between the provisions of the Act that specifically referenced firearms and ammunition produced by Intratec and Penn Arms and the provisions that contained generic prohibitions or identified prohibited materials by characteristics rather than by manufacturer or brand name. As stated, the Court of Appeals concluded that plaintiffs lacked standing to challenge the latter group of prohibitions because it could not be shown that these companies faced an imminent threat of prosecution under the Act. In the absence of language specifically referencing the firearms produced by plaintiffs, the Court of Appeals concluded that prosecution became far less imminent. Navegar 103 F.3d at 1001 ...

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